ILLINOIS

POLLUTION

CONTROL

BOARD

SeDtember

15,

1976

INTERNATI ONAL

HARVESTER

COMPANY,

Petitioner,

v.

)

PCB

75—271

ENVIRONMENTAL

PROTECTION

AGENCY

Respondent.

SPECIALLY

CO1~~CURRING

OPINION

(by

Mr.

Zeitlin):

while

I

agree

with

the result reached

by

the majority of the

Board

in this matter

-

that

is,

the

qrant

of

a

Variance

-

I cannot

concur

with

the

reasoning expressed in the majority Opinion to

support

tOat

result.

In

brief,

I

ted

tnat

the facts and circum-

stances

or

this

case

warrant

tne relief

granted

in

this

case;

toe

majorit~~Oninion

s

statements

with

regard

to

the

Board

~s

interpre-

tation

o~ Train

v.

Natural Resources Lefense Council,

421

U.S.

60

(1975)

,

are

unnecessary

to reach the final result,

and should be

regarded

as

mere

surplusaqe.

The

Board

here

specifically

finds that Petitioner has complied

in

good

faith with the conditions of previous Variances approved by

the

Board,

and

tnat

the

instant

Variance

iS

an

extension

of

those

prior

Variance

grants.

A

reading

of

the

latter

of

the

prior

Variance

grants,

PCB

74-277,

indicates that the Board knowingly approved

Petitioner’s

compliance

plans,

with

knowledge

that

those

plans

might

extend

beyond

the

attainment date for the

primary

ambient

air

quality

standards.

See,

Supplemental

Opinion

and

Order

of

the

Board

(Sep

L

uil~

r

~

C)

,

I

~7 ~)

,

I

H

PCH

734

.

‘lie

l3eu rd

z~

I ~:e

w

t hen

L ie~

portions

of

Petitioner’s

compliance

efforts

miqht extend

into

1977.

Given these facts,

I

feel

that

it

is

plain

that

our

previous

statements with regard

to

this

matter have led Petitioner

to follow

an ap~rovedcourse of action

in its compliance efforts.

The Train

decision does not affect the validity of compliance plans ordered

by the Board in such previous proceedings.

Our extension of a

previously approved Variance under these facts

is not prohibited

by

Train.

23

—

449

---

—2--

Further,

the

Board’s

Supplemental Opinion and Order in

this

matter,

supra, makes it clear that the primary ambient air quality

attainment date for the Chicago area is still an open issue.

It

may well be that the validity of the Board’s previous interpretation

of Train need not even be approached in this case, because of the

dates involved.

These factors, combined with the normal weighing of hardship

against environmental impact employed in any Variance analysis,

indicate that the relief granted in this case could have been granted

without an unnecessary, general decision on the Train issue.

For the same reasons,

I feel that no broad discussion of this

Board’s Variance authority vis—a—vis federal law is necessary to

this decision.

This~is particularly true inasmuch as that discussion

I therefore decline to join in the majority Opinion.

I,

Christen L. Moffett,

Clerk of the

I.linois

Pollution

Control Board,

hereby certify th~above Specially Concurring

Opinion was submitted on the

~

day of\S.,J~..~.,l976.

C,

Christan L. Moffet

,

Philip

Member

23